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DPP v Toumngeun

DPP v Toumngeun

Case [2008] VSCA 91 29 May 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 11 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS
	v
KIA TOUMNGEUN

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JUDGES:	ASHLEY and NEAVE JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 May 2008
DATE OF JUDGMENT:	29 May 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 91

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CRIMINAL LAW – Sentencing – Director’s appeal – Appellant pleaded guilty to two counts of recklessly causing serious injury – Injured de facto partner’s brother by throwing a chair and breaking his right arm (count 1) and swinging a bottle and causing deep lacerations to his left arm (count 2) – Sentenced to two year community based order (count 1) and 15 months’ imprisonment, wholly suspended for 18 months (count 2) – Appeal dismissed on the basis that sentences were not manifestly inadequate and within the judge’s discretion.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Respondent	Mr P F Tehan QC with Mr S P Kennedy	Greg Duncan

ASHLEY JA:

Neave JA will deliver the first judgment.

NEAVE JA:

Background

On 29 October 2007, the respondent, Kia Toumgeun, pleaded guilty to two counts of recklessly causing serious injury to James Jacob, the brother of his then de facto partner and a former friend.

He was sentenced by a judge of the County Court as follows: for count 1, which involved throwing a chair and breaking the victim’s right forearm, to a Community Based Order of two years duration; for count 2, which involved hitting the victim with a bottle and causing severe lacerations to his left forearm, to 15 months’ imprisonment, wholly suspended for a period of 18 months.

This is an appeal by the Director of Public Prosecutions against those sentences.

The offences occurred in July 2004, in the following circumstances. The respondent had been in a relationship with Nicole Jacob for around ten years, but their relationship had deteriorated over the year preceding the offence. They had four children, aged between two and eight years. The respondent was concerned about his partner’s care of the children and was aggrieved by her family’s influence and their drinking. On 12 July 2004, the respondent knew that Nicole Jacob and his children were at the home of Andrew Jordan in Wodonga and decided to go there. In his police interview he said that it was a school night and he wanted to know why the children were not at home. Ironically, given his concern about the Jacobs family’s use of alcohol, the respondent had been drinking.

He arrived at the house at around 9 pm. James Jacob, his mother Megan Harris, Andrew Jordan’s three children, and the respondent’s de facto partner and

their children were all there.

The respondent said that he ‘lost control’ when he saw James Jacob and Megan Harris. He picked up a chair and threw it at them. The chair struck James Jacob on the right arm, fracturing his ulna bone.

The respondent then…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Toumngeun

Details

AGLC: Director of Public Prosecutions v Toumngeun [2008] VSCA 91
Case: [2008] VSCA 91
Decision Date: 29 May 2008

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus Toumngeun was heard in the Supreme Court of Victoria. The defendant, Toumngeun, pleaded guilty to two counts of recklessly causing serious injury. The first count involved the defendant throwing a chair at his de facto partner’s brother, resulting in a broken right arm. The second count involved the defendant swinging a bottle, which caused deep lacerations to the victim’s left arm. The issue before the court was whether the sentences imposed by the trial judge were manifestly inadequate. The Director of Public Prosecutions had appealed the sentences, arguing that they were too lenient.

The court considered whether the sentences were manifestly inadequate and whether the trial judge had exercised his discretion appropriately. The court noted that the sentences imposed were within the range of outcomes that a judge could reasonably impose for the offences in question. The court emphasised that it was not its role to substitute its discretion for that of the trial judge unless the sentence was palpably wrong. The court concluded that the sentences were not manifestly inadequate and dismissed the appeal. The reasoning focused on the principles of judicial discretion in sentencing and the importance of deference to the trial judge’s assessment of the particular circumstances of the case.

Given the court's findings, the appeal was dismissed. The original sentences remained in place, with the defendant receiving a two-year community-based order for the first count and a 15-month imprisonment sentence, wholly suspended for 18 months, for the second count. The court's decision underscored the principle that appellate courts should only intervene in sentencing matters when the sentences are manifestly inadequate or demonstrate a clear error in the exercise of judicial discretion.

Orders